Q There is a lane to the rear of my property which the public use as a footpath. I have no objection to that but I am concerned that people are also using a small part of my garden as a shortcut and when I point this out to walkers they generally ignore me. One walker even said that he had a right to cross my land as it was part of the public highway. What is a highway and how can I check whether he is right?
A. A highway is a common route which people can pass and re-pass along as frequently as they wish, without hindrance and without charge. You should contact the Highways Department at the Local Authority as they maintain a definitive map describing the location and status of different types of highway such as, amongst others, footpaths, bridleways and public paths.
Q Assuming that there is no right over my land, is there any possibility of one being created if I continue to allow people access?
A. Yes, a right of way can be "presumed" to be dedicated by you as a highway if it has been actually enjoyed by the public as of right. Whilst 20 years uninterrupted use is required for such a right to arise under the Highways Act, under the general law there is no specific time limit.
Q. Oh dear. What can I do anything to prevent this happening?
A. You must demonstrate to the public that you have no intention of dedicating the land to the public. This can be done by either turning people away or by putting obstacles in the way or he has restricted use of the highway to a particular section of the public. You should also erect and maintaining a suitable visible notice or sign making it clear it is private land and you do not permit people to cross it. If the notice is torn down, or defaced, you should notify the council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient to negate the intention of the owner of the land to dedicate the way as a highway.
Should you have a queries regarding a legal matter please contact Keith Swan of Patterson, Glenton & Stracey Solicitors by email at ks@pgslaw.co.uk or by telephone on 0808 231 7043. Patterson, Glenton & Stracey have provided legal advice to the people of South Tyneside for over 125 years. For details of their full range of services and to view previous Gazette articles please log on to www.pgslaw.co.uk.
